Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

12 January 2014

Neepery-Spiced Link Sausages

Although this case probably should have come out of Colorado and not out of California, purveyors of bongs will be happy to hear that the design of a bong (however ornate) is not properly the subject of a copyright claim. It's, like, a useful article, man, so it has to be either a design patent or a trademark, because copyright can't be claimed for anything useful. Inhale, Inc. v. Starbuzz Tobacco, Inc., No. [20]12–56331 (9th Cir. 09 Jan 2014) (PDF). Faaaaaar out. And I really really believe that these "water pipes" were intended for tobacco... by either the purveyors or the customers.

"Consensus" means "unanimous and without objection or reservation." It appears that — contrary to the headline on this article — there is no consensus on global warming because there is an objector. One objector out of nearly 10,000 instances.

Some who know a little bit about the history of science will object "But Galileo!" and completely miss the point. For one thing, Galileo was hardly alone in objecting to geocentrism, or to any of a variety of other bits of received wisdom; he just did so in the course of a personal attack on his former personal friend the Pope, so attacks on him from the power structure had a little more bite to them. For another thing, Galileo didn't just say "No it isn't" about geocentrism (or mechanics or gravitation); he offered another, specific, testable theory as a better explanation. What explanation has been offered by global-warming denialists for measured (and essentially irrefutable) evidence of climate changes, other than "Who ya gonna believe — me or yer own lyin' eyes?"

Friday was a huge day for intellectual property at the Supreme Court, with the court agreeing to hear four IP cases. And all of this will have profound business and creative impacts on authors, even if they're a bit subtle:

The Aereo case is the most obvious, as it relates directly to what "counts" as a copyright infringement. Further, the result of the case will have follow-on effects in both compensation for authors and noncompensation clauses in contracts offered to authors by those who would license their writings.

A second related-to-piracy accusation comes in the Limelight-Akamai matter, if only because the defense offered — "I didn't do it, my customers did it using my also-useful-for-another-purpose toolset" — is directly analogous to the defenses usually offered by internet copyright pirates... and, for that matter, in Grokster. That said, this is a much more complicated matter than it appears, and it leads directly to another case granted Friday:

Just how "clear and distinct" must patent claims be to be enforceable or valid? Although the Nautilus case doesn't appear to directly impact authors' interests, one must realize that most patents related to online commerce — indeed, many (if not most) software patents — have similar problems and have been similarly attacked. And that will have significant effects on authors, either way.

One of the real problems with trademark law is standing — who has the right to complain. It's sort of ironic to see Pom Wonderful leading the charge here, as Pom Wonderful's underlying claims are themselves somewhat... scientifically questionable.

And this leads to more IP neepery. An IPKat asks whether copyright has a notion of "progress" embedded in it. Leaving aside that I reject several of the factual premises — such as the claim that 1939 was a highwater mark in cinema that has never since been surpassed (I would point to 1979 and 1980, regardless of the problems with the Oscars those years... particularly since some of those 1939 "classics" were never as good as their reputation and simply do not hold up) — this particular kat got distracted by the mouse entrails this time. Progress in the arts is, by its very nature, neither measurable nor replicable. As specific examples, consider whether it is possible to objectively and replicably determine whether Procol Harum's "A Whiter Shade of Pale" represents "progress" beyond Bach's Orchestral Suite Number 3 (D), Second Movement (the "Air on a G String" from which the organ part of the Procol Harum piece was consciously derived), or whether one can objectively and replicably determine whether Ran or A Thousand Acres represent "progress" over The Tragedy of King Lear (however unsatisfactory all of the filmed versions to date of the Shakespeare have proven).

More particularly, progress in the arts (such as it is) is never linear, excepting only "linear perspective"; if it was, Georgia O'Keefe would have painted like Picasso... but I don't think that Cubist flowers would have the same sort of reputation, do you? In a way, the concept of "progress" underlying that piece denies the Second Law of Thermodynamics: It depends upon the lossless existence of Maxwell's Daemon (the math demonstrating this is left as an exercise for the student — but it's math that shouldn't be beyond a third-year chemistry undergraduate). The redefinition at the end of the piece does not, I'm afraid, evade the implications of the earlier discussion.

And speaking of lack of "progress," I can't avoid the bloody commercials: American Idiotol starts its new "season" soon, with its continued disdain for anything that actually matters to "Progress in the useful Arts." I wish I could avoid the bloody result: Further overemphasis on the telegenic qualities of vocalists as a measure of musical worth and achievement when judged by panels that over the years mainly have shared a rather disreputable ignorance borne of tunnel vision.

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Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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